Has the B.C. Human Rights Tribunal Come of Age?

For years, the B.C. Human Rights Code has received scant attention in the corporate setting. Aside from the routine implementation of a harassment policy, many employers give little further thought to protection of human rights in the workplace.

Part of the reason for this phenomenon has to be the fact that, historically, human rights damages awards have been very low. It has not been uncommon to see egregious breaches of an employee’s rights addressed with awards in the $2,500 to $5,000 range. That kind of money hardly strikes fear into the hearts of employers.

All that may have changed as a result of a 2006 decision issued by Human Rights Tribunal member Barbara Junker. She presided over the hearing of a complaint by Janie Toivanen against her employer, Electronic Arts (Canada) Inc.

Ms. Toivanen was a localization producer (responsible for converting a video game from English into different langages) for Electronic Arts, one of the largest video game producers in the world. Her complaint initially arose out of circumstances which saw her workload virtually doubled.

This resulted in her health suffering. Her sleep patterns were disturbed, she experienced weight fluctuations, and was irritable and withdrawn. She also complained of headaches, shortness of breath and was diagnosed as showing depression and anxiety.

She informed her employer of her situation and requested assistance. Ultimately, she was advised by her physician to book off work immediately for medical reasons. Electronic Arts reacted to her request for a leave of absence, without investigating the reasons for her request, by dismissing her.

The Tribunal proceeded to address the issue of the injuries and losses suffered by Ms. Toivanen and the damages to be awarded as compensation. It first ordered payment of Ms. Toivanen’s prescription, medical, dental and eye expenses of just over $6,000.00 and then awarded her legal expenses which arose from her employer’s contravention of the Human Rights Code of $3,300.00. The Tribunal then awarded her an additional $1,000.00 for out-of-pocket expenditures she made on securing medical reports for the purpose of the hearing.

The Tribunal then turned its attention to Ms. Toivanen’s claim of lost value arising from the need to exercise certain stock options. In effect, she was compensated for having to exercise her stock options earlier than she would have chosen to had her employment not been terminated on a discriminatory basis. The Tribunal awarded her over $69,000.00 as a result of the value lost when she was required to cash in her share options.

Ms. Toivanen was not awarded lost wages due to the fact that her medical condition precluded her from working during the period after being dismissed. It did, however, make an award in the form of severance pay of almost $20,000.00.

The Tribunal went on to order Electronic Arts to pay an additional $20,000.00 for injury to dignity, feelings, and self-respect suffered by Ms. Toivanen. The Tribunal seemed particularly moved by the impact on Ms. Toivanen of the dismissal, calling Electronic Arts’ dismissal of her a “most disturbing act” which “undoubtedly exacerbated her illness”.

Finally, the Tribunal ordered payment of pre-judgment and post-judgment interest. In total (excluding the interest) the Tribunal’s award against Electronic Arts amounted to approximately $120,000.00.

That kind of award of monetary damages is the type which will finally cause employers to sit up and take notice. It is an award on a scale which can truly serve as a deterrent to illegal activities which compromise employees’ human rights. It could, perhaps, be said that with Ms. Junker’s award the B.C. Human Rights Tribunal has come of age.

Pushor Mitchell Lawyers Leneigh Bosdet and Paul Tonita will be volunteering their time in the Pro Bono Advice-a-Thon even that takes place in city park in Kelowna throughout the day on September 10, 2019.